Open Letter: 43 Organisations demand transparency over DSA and DMA negotiations

The EU is holding back crucial documents from the negotiations over the Digital Services Act and the Digital Markets Act. With a broad alliance, we call for the proactive publication of these documents in order to enable public scrutiny and accountability.

A new rulebook for the digital space – that was the goal of the EU legislative package of Digital Services Act (DSA) and Digital Markets Act (DMA). More transparency and accountability for the giant platforms, more power to the users. But the development of the two regulations speaks a different language.

While tech companies have massively lobbied against restrictions on their exploitative business models, civil society is left behind. Essential documents from the negotiation process between the EU institutions are not published, public scrutiny is dependent on leaks.

Secrecy reinforces power imbalances

Together with Lobbycontrol, Corporate Europe Observatory and 40 other civil society organisations and trade unions, we sent an open letter to the leading negotiators of the DSA and DMA demanding the active publication of documents related to the trilogue negotiations.

Trilogues are an informal practice, but take place in 80% of legislative procedures. They have long become a fundamental part of EU policymaking and must be accessible to the public. Keeping these documents secret only reinforces the existing power imbalances between large corporations and civil society.

„Black Box EU“: Request trilogue documents

We have already called attention to the lack of transparency in trilogues with our campaign „Black Box EU“ last year. Discover documents of past meeting or file a new request for ongoing negotiations!

→ Open letter

→ „Black Box EU“ campaign

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28 February 2022 Dear MEP Schwab and MEP Schaldemose, Dear Minister O, Dear Executive Vice-President Vestager and Commissioner Breton, As civil society organisations and trade unions working on transparency, democracy and digital rights we are writing to you to request urgent improvements to the transparency of the trilogue negotiations of the Digital Markets Act and the Digital Services Act. These two complementary proposals have the potential to make digital services safer, and to protect and empower users, workers and small businesses. Together, they touch upon a vast array of issues that can have concrete consequences for peoples’ lives. The Digital Services pack has also been the target of intense lobbying since the onset, especially by Big Tech 1                 2                                   3 firms and its intermediaries. Research by Lobbycontrol and Corporate Europe Observatory has shown how well-resourced companies have attempted to influence this process at all stages and managed to achieve unparalleled levels of access to the discussions. Civil society organisations and citizens cannot match the resources spent and the access gained by Big Tech. Secrecy of policy making only further intensifies this unequal playing field, shutting citizens off from crucial discussions that will have an impact on their lives. We were therefore disappointed to see that the European Parliament and the Council of the European Union have not made arrangements to ensure that the trilogue negotiations of these important files would be transparent and easily accessible. The agendas are not public and neither the European Parliament or the Council of the European Union have published the up-to-date multi-column document with the agreements achieved thus far or the preliminary positions of the Presidency of Council in relation to the amendments proposed by the Parliament (the 4th column). Curiously, the European Parliament and Council published an empty DMA four column document at the beginning of February 2022, described as the most recent version of the document, but dated January 11. 4 Leaks of newer versions have exposed that this is not true. Trilogue negotiations are a crucial moment of EU policy-making: the time when EU Parliament and Council discuss and reach agreements on EU policy proposals. According to the EU Parliament, in 2018 between 70 and 80% of the European Union’s legislative acts are adopted following a trilogue. It should be noted that, in the majority of cases, the final trilogue agreement is swiftly adopted. Yet, meetings are held behind closed doors and access to documents relating to these discussions are often rejected. 5 As you will be aware, in 2018 the General Court in case T-540/15 De Capitani v Parliament ruled that these types of documents not only fall within the scope of access to documents regulation, but also constitute legislative documents, and hence heightened levels of transparency and openness are essential to ensure the legitimacy of this process. Further, the Court affirmed that “If citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information” . To ensure that the trilogue negotiations on the Digital Services Act and Digital Markets Act are genuinely transparent and open to citizens, we ask the co-legislators to: • Publish proactively, on a rolling basis a list of documents tabled during trilogue negotiations, in line 6 the European Ombudsman’s recommendation ; • Make public an up-to-date calendar of trilogue meetings including summary agendas; 1 2 berichterstatterinnen/ 3 4 5;jsessionid=DF2462744CB738E58A5817B497F94D51? text=&docid=200551&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2875242 6

•    Publish proactively the four-column document on a rolling basis. We thank you in advance for considering these proposals. We would welcome the opportunity to further discuss these issues with you in a meeting. Should you have any question, please do not hesitate to come back to us. Yours sincerely, Corporate Europe Observatory Lobbycontrol FragDenStaat Access Info Europe Transparency International EU The Good Lobby SumOfUs Daphne Caruana Galizia Foundation Reporters Without Borders (RSF) The Coaltion For Women In Journalism (CFWIJ) Iraqi journalism Rights Defense Association (IRJDA) Fair Vote Foxglove Global Witness Defend Democracy Gong Vouliwatch Statewatch Waag Future Lab Inštitút ľudských práv - Human Rights Insitute Civil Liberties Union for Europe (Liberties) Access to Information Programme Foundation Citizens Network Watchdog Poland UNI Europa European Trade Union Confederation (ETUC) European Federation of Public Services Unions (EPSU) AK EUROPA Alliance4Europe Institute for Strategic Dialogue (ISD) People Vs Big Tech Irish Council for Civil Liberties Peter Tatchell Foundation ARTICLE 19 Panoptykon Foundation Lie Detectors Je Suis Là Global Action Plan Simply Secure Ranking Digital Rights Uplift digiQ Missing Children Europe ASEED Europe

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Lea Pfau

Lea ist Campaignerin bei FragDenStaat und arbeitet zusätzlich zum Volksentscheid Transparenz.

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